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2004
HOUSE OF
REPRESENTATIVES
EXPLANATORY
MEMORANDUM
(Circulated
by Authority of the Minister for Transport and Regional Services,
the Honourable John Anderson MP)
The Navigation Act 1912 (Navigation Act) is the principal Commonwealth
Act relating to the safety of ships. Schedule 1 of the Bill will make a number
of amendments to the Navigation Act:
• remove the requirement for
assessors of nautical experience to advise the Court in a prosecution for a
breach of regulations relating to the prevention of collisions and the display
on ships of lights and signals;
• clarify that a breach of
regulations relating to the prevention of collisions and the display on ships of
lights and signals may be prosecuted on indictment; and
• revise
penalties in the Navigation Act which relate to careless navigation near ice and
the rendering of assistance following an accident at sea or where persons are in
distress at sea.
There is no financial impact.
NOTES ON CLAUSES
Clause 1: Short
title
Clause 1 is a formal provision specifying the title of the
proposed Act.
Clause 2: Commencement
This clause
provides for commencement of the Bill
Subclause 2(1) provides that each
provision of the Bill specified in column 1 of the table incorporated in that
subclause commences or is taken to have commenced on the day in column 2 of the
table.
Item 1 of the table provides that sections 1 to 3 commence on the
day the proposed Act receives Royal Assent.
Item 2 of the table provides
that the items in Schedule 1 commence on the 28th day after the day
on which the proposed Act receives Royal Assent.
Subclause 2(2) provides that column 3 of the table incorporated in subclause
2(1) is for additional information that does not form part of the proposed Act,
and that such additional information in that column may be added to or edited in
any published version of the proposed Act.
Clause 3:
Schedules
Clause 3 is a formal clause indicating that each Act
specified in a Schedule to the Bill is amended as set out in the relevant
Schedule.
Schedule 1 – Amendments of the Navigation Act 1912
Item 1
Item 1 inserts new subsection 258(3) to make it clear
that an offence against the regulations which prescribe measures to be observed
for the prevention of collisions and the provision and use on ships of lights
and signals is an indictable offence.
Currently, the maximum penalty for
an offence against the regulations for an individual is a fine of $10,000 and a
term of imprisonment of 2 years. In accordance with section 4G of the Crimes
Act 1914[1], it would appear that
this is an indictable offence. However, in an unreported Victorian County Court
ruling (R v Rodel Diaz Baladad) in November 2003, the Judge found that
there was a "contrary intention" and so offences against the regulations should
be prosecuted summarily.
New section 258(3) is being inserted in response
to that ruling of the Victorian County Court.
Item
2
Subsections 258(5) and (6) require a Court before which proceedings
are being heard for an offence against regulations relating to the prevention of
collisions and the use of lights and signals on ships to be assisted by "not
less than 2 assessors of nautical experience appointed under Part IX" of the
Navigation Act. Part IX was repealed in 1990 and so there is no mechanism for
the appointment of nautical assessors. Item 2 repeals subsections 258(5) and
(6) to remove the requirement for assessors.
Items 3 and
4
Item 4 replaces the existing penalty in section 258A for careless
navigation near ice, of $10,000 or imprisonment for 4 years or both, with a
maximum penalty of imprisonment for 4 years.
As there is only one
subsection in section 258A, item 3 deletes the superfluous “(1)”.
Item 5
Section 264 requires each person in charge of a
ship involved in a collision with another ship
to:
• render practicable and necessary assistance
to the other ship;
• stay by the other ship until
there is no need for further assistance;
and
• give information about the ship to the
master or person in charge of the other ship.
The maximum penalty for
breach of this requirement is currently a fine not exceeding $20,000 or
imprisonment for a period not exceeding 10 years, or both. Item 5 amends
subsection 264(2) to provide that the maximum penalty is expressed simply as
imprisonment for 10 years.
Item 6
Subsection 265(1)
requires the master of a ship to cause his or her ship to assist persons on or
from a ship or aircraft who are in distress.
The maximum penalty for
breach of this requirement is currently a fine not exceeding $10,000 or
imprisonment for a period not exceeding 4 years, or both. Item 6 amends
subsection 265(1) to provide that the maximum penalty is expressed simply as
imprisonment for 4 years.
Item 7
Subsection 265(2)
provides that the master of a ship or aircraft in distress may requisition the
most suitable ships which answer his or her calls for assistance. The master of
a requisitioned ship must proceed to the assistance of the persons in
distress.
The maximum penalty for breach of this requirement is currently
a fine not exceeding $20,000 or imprisonment for a period not exceeding 10
years, or both. Item 7 amends subsection 265(2) to provide that the maximum
penalty is expressed simply as imprisonment for 10 years.
Item
8
Subsection 265(6) requires a master to keep a record of any
information received about a ship or aircraft in distress at sea and, if the
master does not proceed to the assistance of persons from that ship or aircraft,
the reasons for not proceeding. Item 8 increases the maximum penalty for breach
of this requirement from $2,000 to 50 penalty units.
[1] Section 4G of the Crimes Act
1914 provides as follows:
Offences against a law of the Commonwealth
punishable by imprisonment for a period exceeding 12 months are indictable
offences, unless the contrary intention appears.